Why We Refused to Participate in a $25 Million Agreement to Stop Fighting Newhall Ranch

As most people probably already know, Newhall Ranch is a massive project located along Los Angeles County’s last free flowing river, the Santa Clara. It will pave over 1500 acres of prime farmland, fill the flood plain with 7 million cubic yards of dirt, levy a portion of the river and concrete tributaries, some of the very things that the City of Los Angeles is spending hundreds of millions of dollars to undo along the Los Angeles River.

First proposed in the 1990s, it has faced strong opposition for decades. In an effort to silence this opposition, Five Points, the owner of the project, offered to settle with these organizations. The agreement, accepted by three of the groups, gave them $15 million dollars for a conservation fund, and substantial additional amenities, totaling another $10 Million. The Native American group apprently received an even greater amount in an undisclosed side agreement. In exchange the groups will cease all litigation, tell public agencies that they no longer oppose the next 26,000 units to be approved decades into the future in one of the most sensitive areas of the Santa Clara River, and agree not to comment on these future projects. Of course there was nothing in this agreement that forbade them from commenting on projects that compete with FivePoint in the housing market. What a sweet deal for the developer.

SCOPE and Friends of the Santa Clara River did not settle. While we can’t speak for the Friends Board members, we know that their deliberations were similar to our own.

Why didn’t we sign? We felt that this was a Faustian bargain incompatible with our mission statement, our advocacy for public involvement and our commitment to the public discussion that is necessary to keep our democracy healthy. It violated our pledge to protect the Santa Clara River, its treasure trove of habitat and rare and endangered species, and our water supply.

It turns out these were exactly the ethical issues cited by Christopher Stone, an environmental law professor at USC in a 2001 LA Times article on another such deal:

“You’ve got organizations–the very purpose of which is to monitor and speak out–and they agree not to engage in the very function for which they have been established and for which they are being financed by people who make voluntary contributions. It really sounds bad,” he said. “And forced speech is all the worse.”[1]

Yes, we know that in our current society it is very difficult to win against the big money interests of national development corporations, oil companies or the big banks. It is a David and Goliath battle. But isn’t our very democracy about trying? Isn’t that what the Civil Rights movement is about? And what about climate actions against the oil companies? Certainly these are battles of might vs. right.

It is the code of silence, the effective and complete muzzling of public interest groups who have received public support through their promise to defend such issues, that makes such deals particularly troubling. Just as insidious, are the often successful efforts to get those groups to muzzle others. For instance, as the huge Centennial project recently came up for review, the Sierra Club reminded members that they cannot comment on this project due to a 2008 agreement made with its’ developer in exchange for a large conservation easement. The deal went further, also requiring that reports on the area be kept confidential.

Since 2000 such agreements to no longer speak out have become common. Developers and their sophisticated attorneys decided it was cheaper to pay out for silence then continue the expensive and unpredictable public debate.

Some groups may feel development set backs or conservation funds are worth the trade off. Or, a group may be forced to settle when it can no longer fund the enormous legal expenses, or the court case is lost.

To us, such outcomes seem at least partly caused by the planning agencies. People often joke that planning is now done by lawsuit. In LA County and all other jurisdictions of which I am aware, every land use approval contains a clause stating that the developer will be financially responsible for any legal challenge. In a perverse way, this practice encourages the agency to approve whatever is before them, in order to avoid being sued by the developer, while perhaps even secretly hoping that some community group will sue and force the developer in Court to do the right thing. When major issues like water supply, traffic and air pollution remain unanswered, community groups do their best to demand that such issues be addressed. But it remains a David and Goliath battle fraught with Faustian bargains.

Is this just the art of compromise, or is it something more sinister? When the public loses its voice, is that really a win? Whatever viewpoint one has, it is time to ask why this is happening and examine the consequences. The Santa Clara River certainly needs a conservation fund, but was giving up and supporting a huge urban sprawl project at a time when it is more important than ever to oppose such auto-oriented projects, really the way to do it?